The demand for the democratic rule of law in German judiciary

The Free Society Association (SWS, Stowarzyszenie Wolne Społeczeństwo) submitted on 10 September 2021 to the government of the Federal Republic of Germany the petition "Return German and foreign children to their families". The petition defines the need for the participation of independent civil society organizations in all family proceedings in courts of law in parental authority or child custody or guardianship cases. SWS demands at the same time the full implementation of the democratic rule of law by German judiciary and presents the court crimes caused by the lack of the respect for that rule, showing that the German state organizes criminal child abductions.

In the opinion of the SWS the urgent action is necessary in the current situation composed of the following circumstances:

(1) until 2021 the consensus has been achieved to a great extent between independent actors --- politicians and journalists --- of the public debate in Poland and Germany that there is no independent judiciary in Poland as well as in Germany;

(2) the European Commission, the government of Poland and the federal government of Germany refuse to participate in the democratic assessment of the failures in the building of democratic and independent judiciary in Poland and Germany, as well as they refuse to support such an assessment being democratically carried out on the civil society side;

(3) Polish citizens bear the most costs and negative effects of the lack of democratic and independent judiciary in the European Union, especially in Germany and Poland and especially in international family proceedings;

(4) the German judiciary became a harmful propaganda example for judiciary organization in Poland despite the consensually acknowledged lack of respect for democracy and for independence from political parties within the German judiciary, and as such an example it constitutes a grave obstacle for establishing a democratic rule of law in Poland and in the European Union;

(5) the finalized in 2020 hostile takeover of the judiciary in Poland by political parties removed the foundation of the sovereignty of Poland by establishing foreign influence on the judiciary through the political parties in Poland as the political parties in Poland since at least 2020 act strictly within the cartel party model in a hidden and informal cooperation between so-called opposition and so-called ruling parties, and --- instead of representing the interests of Polish citizens and Polish voters --- represent on the political scene the interests of the state administration officers in Poland as well as the interests of the foreign donators of the money to the political parties who need the money to keep their ruling positions.

SWS demands from the government of the Federal Republic of Germany an urgent governmental response to the petition under the title "Return German and foreign children to their families", and additionally demands in the case of the illegal court decision in Dresden, Saxony, from the federal government of Germany: the suspension of all financial claims from the state or public side against the mother defending her family and child, as well as the suspension of all enforcement proceedings in that case and the protection of the child and mother from local authorities and local criminals in Dresden in connection with the proceedings instituted against the crimes of judiciary in Saxony.

The role of the civil society organization

From numerous criminal activities of German judiciary, the SWS chose the case of the illegal court decision in Dresden, Saxony, in the family case of the child of a Polish mother, as an example of obvious court crimes ("Rechtsbeugungen"). The mother and child have been assaulted by German officials who used a false, illegal court decision to abduct the child when the mother formally moved from Germany to Poland with the child.

Illegal and hostile takeover of the judiciary in Poland by political parties and the following conflict among the politicians and their principals, domestic and foreign as well, over controlling and commanding Polish judges through political parties, opened the debate about political dependency of judges in the member states of the European Union. In effect, journalists in Poland could at last admit that a judge in Germany is only a clerk hired by politicians. The journalist however still had to certify an untruth, claiming that while politicians hire those clerks they allegedly do not exploit them:¹

(...) In Germany the position of a judge as a governmental quasi-clerk --- and not as a holder of a separate and independent authority, has not only a long history but also many years of practice of non-interference of politicians who theoretically would be allowed to do it but do not exploit the possibility because their voters would not take it well.

For German politicians it is an old and simple problem of illegal judiciary organization, but a new one for many voters as it was well hidden by German journalists:²

It seems inappropriate, provided the obligation to fundamentally guarantee the independence of judges is taken into account, that the judges who belong to the branch of authority that is autonomously separate from the executive authority are appointed to their posts through the executive authority by the superior governmental official in the same manner as the governmental clerks.

The political conflict over controlling and commanding judges in the member states of the European Union has a potential to initiate true efforts for a real democratic rule of law. The commentator indicated the pivotal moment in 2021 on the side of the Polish government:³

The Minister's political philosophy is to turn the reality upside down: instead of repairing imperfect solutions in Poland and other EU states, the ministry of justice follows the rule: "if other children are allowed to destroy their toys, then we should also be allowed to destroy our toys".

The commentator identified also an example of a lost opportunity for such efforts:⁴

(...) German public prosecutors are not provided with an appropriate guarantee of independence (...)

To stay on the way to the democratic rule of law, one should not allow restricting the debate to closed or hidden political negotiations, like those involving commissioner Věra Jourová representing the European Commission in Poland in August 2021. The role of a civil society organization, among others, is to protest against such negotiations and to demand justice when court becomes a scene of a state crime.

State crime

The illegal court decision in Dresden is a grave example of the great distance between German court practice and the democratic rule of law. In 2014 the German judge appointed by politicians organized a criminal kidnapping of the little son of the mother, who was leaving Germany and moving to her family in Poland. The judge initially upheld the exclusive parental rights of the mother without any reservation, but then immediately deprived her of her parental and guardianship rights as soon as she dared to leave Germany with the child. The court fraud was the simple one: the judge issued a second decision on the merits of the case, although he was only entitled to issue a decision about the costs of the proceedings ("Kostenentscheidung") as the case was already settled on its merits with the previous decision that became valid. The rule of legal validity forbids any decision on the merits of the case if the case had been already validly decided in that scope. The second decision is invalid, but the German officials refuse to admit the invalidity. After 7 years, in 2021 the mother is still awaiting justice. For all those years, the case has not been audited by an independent judge or jury. The single Polish mother in Germany receives no support in executing the law broken by the state pretending to fulfil the rule of law.

Voters do not care about foreigners

It is possible that in great number of cases German politicians do not exploit the possibility of influencing judges because their voters indeed "would not take it well". However, the voters may not be interested or may be completely unaware of some important areas of court activities where human rights are at stake. Such is the case of the systemic discrimination against foreign families, among others. Voters do not care about foreigners and about many other problems. They do not have time and resources to act otherwise. Therefore, the above quoted reasoning concerning the alleged "practice of non-interference of politicians" is a baseless propaganda. Therefore, the European Parliament, Committee on Petitions, the Working Group on Child Welfare Issues proposed on 31.1.2018 an additional, independent protection against judges and social workers:⁵

(...) 22. Calls on Member States to consider offering free of charge and accessible legal assistance, in adoption, custody or guardianship national and/or cross-border cases, to families with low or no income and to those facing risk of poverty or being below poverty line; (...)

This call was a part of a long political debate in the European Parliament:⁶

(...) many European parents continue to be systematically discriminated against by judges and the Jugendamt services, and are separated from their children (...)

(...) This procedure adopted by the Jugendamt officials constitutes clear discrimination based on origin and language against non-German parents. Members asked for mechanisms to be put in place to guarantee that non-German parents and their children can communicate in their common language. (...)

(...) Condemns the fact that, in cases of supervised parental access, failure by non-German parents to comply with the Jugendamt officials procedure to adopt German as language during conversations with their children, led to the harsh interruption of conversations and to a ban on contact between the non-German parents and their children; believes that such procedure adopted by the Jugendamt officials constituted a clear discrimination based on origin and language against non-German parents; (...)

Bafouant en toute impunité deux principes fondamentaux de l'Union --- la non-discrimination à raison de la nationalité et la libre circulation des personnes, l'Allemagne, expose des citoyens européens à la plus cruelle des injustices: être définitivement séparés d'un enfant.

Independent control for judiciary

The preface to Jutland Law, that King Valdemar gave, and the Danes adopted (1241), stipulates the rule of independent control for judiciary in the same area the European Parliament tried to embrace with the additional protection:⁷

It is the duty of the king and the country's chiefs to monitor judgments and to do justice and to save those who are being wronged, such as widows and defenseless children, pilgrims and foreigners and the poor --- those are mostly wronged, and not to allow evil people, who do not want to improve themselves, to live in his land; (...)

Today, after 780 years, the same "widows and defenseless children, pilgrims and foreigners and the poor" are still among those who are the mostly wronged. The European Union, the Federal Republic of Germany, the Republic of Poland do not meet the King Valdemar's standards from 1241. It is shameful, and it's a democratic opportunity at the same time. The member states of the European Union have now the opportunity to initiate an open and democratic debate on the truly democratic rule of law in the heart of the Union, and to start repairing their courts.

The political parties should not be "allowed to destroy their toys" because these "toys" are other people's lives. Voters often do not care or do not know about them. For that reason, the political parties are able to destroy many lives and many families. Poland is a good example. There are only false or empty declarations from the Polish government; inaction in the face of lawlessness in the European Union. The Polish government remains silent when they should defend the rights of the Polish families in Germany against court crimes. The Polish government deceives Polish families, depriving them of the due legal protection. As history shows --- today also the tragedy of Afghanistan --- democracy and the rule of law may only exist as an emanation of a strong civil society. The government payed out of foreign pocket will not last long. In this regard, Germany has the key role to play in the decline or in the revival of the European Union.